Constitutional Law Prof Blog

Eighth Circuit Says No Obvious Second Amednment Right to Carry Concealed Weapon in Vehicle

Steven D. Schwinn, John Marshall Law School

The Eighth Circuit ruled that the Second Amendment doesn't obviously protect the right to carry a concealed weapon in a vehicle. The ruling comes on the heels of the Supreme Court's decision to take up a case that could set the level of review for Second Amendment challenges.

The Eighth Circuit ruling came in a challenge to a federal criminal conviction for felon possession of a handgun. The defendant argued that the felon-possession ban violated the Second Amendment as applied to him. (Facial challenges have failed before, and would have failed here, under Heller, which said that a ban on felon possession is "presumptively lawful.") The court said part of the defendant's as-applied challenge necessarily included his particular circumstances--including the fact that he carried his gun on the floor board under the driver's seat of his vehicle--and that the Second Amendment protects that particular conduct. The court said that the defendant didn't argue that his particular conduct (again, including the fact that his gun was under the driver's seat of his vehicle) was protected by the Second Amendment, and therefore he forfeited his challenge.

But the court wrote that even if he preserved the challenge, he would have lost: "It is not plain or obvious that the Second Amendment protects Adam's conduct. There is at least reasonable dispute about whether the Second Amendment protects a right to carry a concealed weapon in a vehicle."

Judge Kelly concurred, but argued that the defendant's as-applied challenge shouldn't have hinged on the particular fact that the gun was concealed in a vehicle. Instead, it should have looked to whether the felon-possession ban met the Second Amendment standard given the defendant's "facts about himself and his background that distinguish his circumstances from those of persons historically barred from Second Amendment protections."

Court Denies Stay Pending Appeal of Order Vacating Sweeping Restrictions on Asylum Claims

Judge Emmet G. Sullivan (D.D.C.) today denied the government's request to stay the court's earlier order vacating the government's restrictions on asylum pending appeal. The ruling means that the court's order will remain in place--and the government can't enforce its crabbed "credible fear" standard in expedited removal proceedings--while the government appeals the earlier ruling.

Recall that the court halted DOJ's and USCIS's standards for "credible fear" determinations by asylum officers in expedited removal proceedings, because those standards violated the Immigration and Naturalization Act or were otherwise arbitrary and capricious under the Administrative Procedure Act. (AG Sessions initiated the change in a ruling in Matter of A-B-, and DHS followed up with administrative guidance.) Those standards restricted claims by individuals who claim asylum based on a fear of domestic violence and gang violence.

The government claimed that the court only had authority to rule on the government's standards with regard to the plaintiffs in this case, and not across the board.

But the court rejected that argument, pointing to the language of the INA and the legislative history. The court also wrote that the government won't be irreparably harmed, and that third parties (other immigrants subject to the government's standard) would be harmed with a stay.

The ruling underscores the court's original order on the merits.

Court Denies Restraining Order in Federal Employees' Lawsuit Over Shutdown

Judge Richard J. Leon (D.D.C.) earlier this week denied a temporary restraining order in favor of the federal employees who sued to get backpay and to not have to go to work during the shutdown. Judge Leon ordered further argument next Thursday, but the case is now likely moot (in light of today's agreement to get things going again, even if only temporarily).

The ruling means that the court declines to order the government to do anything for the employees, and leaves things to the political branches to work it out.

Judge Leon wrote in explicit separation-of-powers terms (and animated text--all emphasis in original):

But I want and need to make something very clear: the Judiciary is not just another source of leverage to be tapped in the ongoing internal squabble between the political branches. We are an independent, co-equal branch of government, and whether or not we can afford to keep our lights on, our oath is to the Constitution and the faithful application of the law. In the final analysis, the shutdown is a political problem. It does NOT, and can NOT, change this Court's limited role. Of that I am very certain.

***

But a TRO is designed to freeze the state of affairs, not throw the status quo into disarray. The TROs sought here would do the latter. Moreover, the emergency relief standard is a sliding scale, and one of the factors I have to weigh is whether granting relief sought is in the public interest. [One group of plaintiffs] would effectively have me order the Federal Aviation Administration to pay [their] unpaid salaries with money that the FAA does not have right now. As plaintiffs well know, Congress has the power of the purse, not me. I cannot grant injunctive relief in that form.

[Another group of plaintiffs] would have me, in effect, give all currently excepted federal employees--numbering in the hundreds of thousands across dozens of agencies--the option not to show up for work tomorrow. These are employees who perform functions that the relevant agencies have determined bear on the safety of human life and/or the protection of property. If I were to issue a TRO, there is no way to know how many of these excepted employees would choose not to report to work tomorrow, and there is no way to know what public services would therefore go unprovided.

It would be profoundly irresponsible under these circumstances--with no record whatsoever telling me what government functions would be impacted--for me to grant that TRO. At best, it would create chaos and confusion--at worst, catastrophe!

SCOTUS Grants Certiorari on New York City Gun Regulation

Professor Ruthann Robson, City University of New York (CUNY) School of Law

The United States Supreme Court has granted certiorari in New York State Rifle & Pistol Association Inc. v. City of New York, New York regarding a New York City regulation that allows  a person having a premises license  for handguns to “transport her/his handgun(s) directly to and from an authorized small arms range/shooting club, unloaded, in a locked container, the ammunition to be carried separately,”  but further defines an "authorized" range/shooting club as limited to facilities located in New York City. 

Recall that  the Second Circuit unanimously upheld the regulation. On the Second Amendment challenge, the opinion for the panel by Judge Gerald Lynch tracked the analytic structure articulated by the Second Circuit in New York State Rifle & Pistol Ass'n v. Cuomo, decided in 2015. Assuming that the Second Amendment applied, the court concluded that intermediate scrutiny was the appropriate standard based on its analysis of two factors: "(1) ‘how close the law comes to the core of the Second Amendment right’ and (2) ‘the severity of the law’s burden on the right.' "  Thus, this grant of certiorari has the potential to determine the level of scrutiny to be applied to gun regulations, a question left open by the Court's decisions in District of Columbia v. Heller (2008) and McDonald v. City of Chicago (2010).

In addition to the Second Amendment issue, the petition for certiorari also challenges the regulation on the basis of the dormant commerce clause and the "right to travel."  On these challenges, the Second Circuit noted that the plaintiffs did not convincingly allege there were problems implicating the crossing of state lines.

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The Federal Employees' Lawsuits Over the Shutdown

Over the last week, three separate lawsuits have been filed against President Trump and administration officials arguing that the government violates due process, the Thirteenth Amendment, the Fair Labor Standards Act, and the Anti-Deficiency Act in ordering certain federal workers to work without pay. In short, the plaintiffs collectively argue that compelled work amounts to a taking of property without due process; that compelled work without pay amounts to involuntary servitude; that the government violates the FLSA by failing to provide on-time payments of overtime wages; and that the government violates the Anti-Deficiency Act by ordering federal employees to work, even if their services aren't needed "in connection with an imminent threat to human life or property" (as required by the Act). (The plaintiffs argue that the government's interpretation of the Anti-Deficiency Act, based on OLC memos, is at odds with the 1990 amendments to the Act. They also argue that this interpretation, and the Act itself, unconstitutionally encroach on Congress's appropriations authority.)

The National Treasury Employees Union complaint is here; the Air Traffic Controllers Association complaint is here; and the anonymous federal employees' complaint is here.

The plaintiffs (again, collectively) seek declaratory relief, back pay and overtime pay, and an injunction prohibiting the government from ordering them to work without pay, among other things.

Fifth Circuit Dismisses Whistleblower Retaliation Claim under First Amendment, Qualified Immunity

The Fifth Circuit dismissed the free-speech claim of a state-court staff attorney who suffered reprisal for reporting judicial misconduct. The court ruled that the defendant, the court's chief justice, was entitled to qualified immunity, because the First Amendment law wasn't clearly established at the time of the reprisal.

The case arose when a "briefing attorney" for a state-court judge reported judicial misconduct on the part of the court's chief justice. The chief justice then arranged for the attorney not to be hired for a staff-attorney position in another judge's chambers. The attorney sued, arguing that the chief's actions amounted to retaliation for his free speech in violation of the First Amendment. The chief argued that the attorney's actions were governed by the state code of judicial conduct (which requires state judges and their staff to report judicial misconduct), that the speech was therefore pursuant to the attorney's "official duty," and that it was therefore unprotected.

The Fifth Circuit ruled that circuit law says that required disclosures are not part of an employee's "official duty" (and therefore are protected by the First Amendment), but that caselaw established this principle only after the chief's retaliation. As a result, the law wasn't "clearly established" when the chief retaliated, and he was therefore entitled to qualified immunity. 

The court also ruled that the attorney's suit dodged Eleventh Amendment immunity problems under Ex Parte Young, because he sought only injunctive relief for an ongoing violation. But the relief he sought--appointment as a staff attorney for a judge on the court--was unavailable, because his original judge (the one who withdrew a job offer in light of the chief's retaliation) was no longer on the court, and because other judges selected their own staff attorneys. "There is no ongoing violation of federal law in the failure to hire Anderson for a different staff attorney position with a different judge."

Sixth Circuit Rebuffs Sweeping Free Speech Claim

The Sixth Circuit ruled today that a school district's exclusion of a non-preferred vendor from "Band Night" did not violate the First Amendment. In so ruling, the court rejected the vendor's sweeping free-speech claim that could have turned many contract disputes into First Amendment violations.

The case involved the Coopersville Area Public Schools' decision to limit participation at the District's "Band Night" to a single musical-instrument vendor. (The District previously opened Band Night to any vendors.) After conducting a competitive process, the District selected Meyer Music, and rejected a competitor, West Michigan Band Instruments, which had previously participated in Band Night. WMBI sued, arguing that its exclusion violated the First Amendment, because the exclusion meant that it couldn't promote its viewpoint (that it was the best musical-instrument vendor for band students and parents) at Band Night.

The court ruled that Band Night was either a limited public forum or nonpublic forum, and that the exclusion did not amount to viewpoint discrimination. The court said that WMBI failed to allege viewpoint discrimination, but, even if it did, "WMBI is a vendor who was excluded from a school forum, not because of its viewpoint, but because of its status as a non-preferred vendor who lost to Myer Music in the bidding process."

The court recognized that school districts put out bids for any number of different projects, and that a ruling in favor of WMBI could have transformed contract awards into First Amendment claims for the losing bidders.

Federal District Judge Enjoins Census Citizenship Question

In its 277 page Opinion in New York v. United States Department of Commerce, United States District Judge Jesse Furman concludes by vacating and enjoining the implementation of the decision of Department of Commerce Secretary Wilbur Ross (pictured below) adding a citizenship question to the 2020 census questionnaire.

Recall that this challenge is one of several to the proposal to add a citizenship question to the 2020 census.  Recall also that in July, Judge Furman denied in part motions to dismiss and allowed the case to proceed.  Judge Furman also allowed discovery in the form of a deposition of Wilbur Ross, an order which was stayed and is now before the United States Supreme Court: oral argument in Department of Commerce v. USDC Southern District of New York is scheduled for February 19, 2019, with the question presented as under the Administrative Procedure Act.

Here New York joins seventeen other state plaintiffs, the District of Columbia, as well as six cities and the United States Conference of Mayors, and the case is consolidated with New York Immigration Coalition v. United States Department of Commerce, with NGO plaintiffs. The claims involve the "actual enumeration" requirements in the Constitution,  Art. I, § 2, cl. 3, and Amend. XIV, § 2, as well as the Administration Procedure Act, with the NGO plaintiffs also raising a Due Process/Equal Protection claim which Judge Furman considered. The case was heard by Judge Furman in an eight day bench trial, despite, as Judge Furman's opinion phrases it the Defendants who have "tried mightily to avoid a ruling on the merits of these claims."

Judge Furman's lengthy opinion helpfully contains a table of contents which serves as an outline for the complicated facts and process involved in the case. 

A large portion of Judge Furman's opinion is devoted to the constitutional question of standing. This Article III issue — requiring an injury in fact, fairly traceable to the challenged conduct of the defendant, and that is likely to be redressed by a favorable judicial decision — is in essence a question of the Enumeration Clause problem.  In other words, to prove injury in fact, the Plaintiffs must prove that the addition of the citizenship question would impact enumeration in a particular way, or "cause a differential decline" in self-response rates which would not be cured, and which would effect apportionment and other matters. For Judge Furman, these and other claims, including a diversion of resources, harm to the quality of data used in intrastate policies, were sufficient to confer standing to the states. Additionally, Judge Furman addressed and found for the most part associational standing for the NGO plaintiffs.

On the merits, Judge Furman rested his decision on the APA claims, including that the decision violated provisions of the APA, was arbitrary and capricious, and most unusually, pretextual.

The evidence in the Administrative Record and the trial record, considered separately or together, establishes that the sole rationale Secretary Ross articulated for his decision — that a citizenship question is needed to enhance DOJ’s VRA enforcement efforts — was pretextual.

Judge Furman found that the "presumption of regularity" was rebutted here.

However, Judge Furman found that the equal protection claim (as part of Due Process Clause of the Fifth Amendment) as pressed by the NGO plaintiffs could not be sustained. Essentially, Judge Furman found that there was not sufficient proof that the pretextual decision was a pretext for discriminatory intent necessary under equal protection, as had been alleged and survived the motion to dismiss, but which now — without the deposition of Wilbur Ross — was not possible to prove, at least not yet.

Judge Furman justified the remedy of injunction thusly:

Measured against these standards, Secretary Ross’s decision to add a citizenship question to the 2020 census — even if it did not violate the Constitution itself — was unlawful for a multitude of independent reasons and must be set aside. To conclude otherwise and let Secretary Ross’s decision stand would undermine the proposition — central to the rule of law — that ours is a “government of laws, and not of men.” John Adams, Novanglus Papers, No. 7 (1775). And it would do so with respect to what Congress itself has described as “one of the most critical constitutional functions our Federal Government performs.” 1998 Appropriations Act,
§ 209(a)(5), 111 Stat. at 2480-81.

The government is sure to appeal.

Another Court Halts Administration's Final Rules on Contraception Mandate

Judge Wendy Bettlestone (E.D. Pa.) yesterday issued a preliminary injunction halting the government's final rules that provide sweeping exemptions to the contraception mandate under the Affordable Care Act.

Judge Bettlestone's ruling is the second in two days halting the rules. But unlike Sunday's ruling, which applied just to the plaintiffs, Judge Bettlestone's injunction applies nationwide. The ruling strikes yet another significant blow against the administration's efforts to eviscerate the contraception mandate and means that the government can't enforce its new rules unless and until it successfully appeals or wins a stay. The second ruling also makes it more likely that the issue will sooner-or-later end up at the Supreme Court.

The court held that the religious and moral exemptions violated the Administrative Procedure Act, for both procedural and substantive reasons. As to procedure, the court held that the government's earlier failure to apply APA procedures to the interim rules "infected" its adoption of the final rules. As to substance, the court ruled that the final rules "exceed the Agencies' authority under the ACA" and cannot be justified by the Religious Freedom Restoration Act.

The court recognized the controversies around nationwide injunctions, but wrote that a nationwide injunction was justified here for three reasons:

For one, anything short of a nation-wide injunction would likely fail to provide the States "complete relief." . . .

Second, it is far from clear how burdensome a nation-wide injunction would be on Defendants, given that when "agency regulations are unlawful, the ordinary result is that the rules are vacated--not that their application to the individual petitioners is proscribed." 

Third, one of the risks associated with a nation-wide injunction--namely, "foreclosing adjudication by a number of different courts"--is not necessarily present here, as the parallel litigation in the Ninth Circuit evidences. 

Fundamentally, given the harms to the States should the Final Rules be enforced--numerous citizens losing contraceptive coverage, resulting in "significant, direct and proprietary harm: to the States in the form of increased use of state-funded contraceptive services, as well as increased costs associated with unintended pregnancies--a nation-wide injunction is required to ensure complete relief to the States.

Daily Read: Resolution to Censure Rep. Steve King for Racist Remarks

Congressman Bobby Rush of Illinois District 1 has introduced a Resolution in the House of Representatives to censure Congressman Steve King of Iowa, listing specific incidents beginning in 2006 and ending with the January 10 remark by Steve King to the New York Times: "White nationalist, White supremacist, Western civilization—how did that language become offensive?’’ Interestingly, the NYT article was profiling King as a precursor of the president's current demand for a "wall" on the southern border of the nation.  In a subsequent television interview Steve King stated he rejected white supremacy.

In November, a coalition of civil rights groups wrote a letter to the then-Speaker of the House and the then-House Majority Leader seeking censure of Representative King, detailing some of the same incidents in the Rush Resolution (and providing citations) as well as including others.

Court (again) Halts Trump Exemptions to ACA's Contraception Requirement

Judge Haywood S. Gilliam, Jr., issued a preliminary injunction yesterday that halts the government's implementation of its sweeping exemptions to Obamacare's contraception requirement in the plaintiff states.

The ruling is a blow to the administration's attempts to allow organizations to opt-out of the contraception requirement on their own say-so, and without informing the government.

Recall that just last month the Ninth Circuit affirmed an injunction barring the government from enforcing interim exemptions, but limited the injunction to plaintiff states.

Yesterday's ruling halts the final rules (not the interim ones). But as Judge Gilliam noted, they're more or less the same, except that the final rules went through notice-and-comment procedures under the Administrative Procedure Act. Those rules include a religious exemption and a moral exemption that permit any organization that has a religious or moral objection to unilaterally opt-out of the contraception requirement, without filing an exemption or even noting an objection to the government. 

The court ruled that the religious exemption likely violated the APA, because it's contrary to the ACA's contraception mandate. (The court rejected the government's position that the ACA's mandate is really just a suggestion.) The court also held that the government's final rule isn't required by the Religious Freedom Restoration Act, because no authority says that simply informing the government of a religious objection (by writing a letter, for example) is a substantial burden. The court noted that there's much work to be done on these issues, however, when the case goes forward.

The court also ruled that the moral exemption likely violated the APA, also because it's contrary to the ACA. Among other problems, the court noted that the Senate rejected a statutory moral exemption when it passed the ACA. 

The ruling temporarily halts enforcement of the government's new final rules in the plaintiff states--California, Delaware, Maryland, New York, Virginia, Connecticut, Hawaii, Illinois, Minnesota, North Carolina, Rhode Island, Vermont, and Washington, and Washington, D.C. 

Iowa Federal Judge Strikes Ag-Gag Statute as Violating First Amendment

In  an Order in Animal Legal Defense Fund v. Reynolds, United States District Judge James Gritzner for the Southern District of Iowa declared Iowa Code § 717A.3, violated the First Amendment. The provisions, similar to ones in other states and popularly known ag-gag laws, were intended at least in part to prevent animal rights activists and others from, as one legislator stated, going out to "gin up campaigns that they use to raise money by trying to give the agriculture industry a bad name.” The law introduced the new crime of “agricultural production facility fraud” which would be committed if the person willfully:

1. Obtains access to an agricultural production facility by false pretenses[, or]

2. Makes a false statement or representation as part of an application or agreement to be employed at an agricultural production facility, if the person knows the statement to be false, and makes the statement with an intent to commit an act not authorized by the owner of the agricultural production facility, knowing that the act is not authorized.

Judge Gritzner noted and relied upon other recent opinions including the Ninth Circuit's 2018 decision in Animal Defense League Fund v. Wadsen holding most of Idaho's ag-gag law violative of the First Amendment and the district court 2017 decision in Animal Defense Fund v. Herbert holding Utah's ag-gag law unconstitutional under the First Amendment.

Judge Gritnzer rejected the argument that the Iowa statute regulated only conduct and found it to be a content-based regulation. But the United States Supreme Court's fractured opinion in United States v. Alvarez (2012), holding unconstitutional the federal "stolen valor" statute criminalizing falsely claiming to have been awarded a military medal, did not provide an easy answer to the level of scrutiny that should be applied to a content-based falsity regulation. So, much like the Ninth Circuit in Wadsen, Judge Gritnzer applied both strict scrutiny and intermediate scrutiny, concluding that the statutory provisions failed both. In short, the statute "is so broad in its scope, it is already discouraging the telling of a lie in contexts where harm is unlikely and the need for prohibition is small. The right to make the kinds of false statements implicated by § 717A.3A—whether they be investigative deceptions or innocuous lies—is protected by our country’s guarantee of free speech and expression."

Certainly the trend has been for courts to hold these ag-gag laws unconstitutional.

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SCOTUS Grants Certiorari on First Amendment Challenge to Trademark Rejection of Immoral or Scandalous Mark

The Court granted certiorari in Iancu v. Brunetti regarding the constitutionality of Section 2(a) of the Lanham Act, 15 U.S.C. § 1052(a), which  prohibits the federal registration of “immoral” or “scandalous” trademarks. The Federal Circuit Court of Appeals held that the section violates the First Amendment. At issue was a rejection to a trademark to Brunetti's apparel line named "fuct."  The Federal Circuit Court concluded with an interesting analogy to copyright protection and the First Amendment:

The trademark at issue is vulgar. And the government included an appendix in its briefing to the court which contains numerous highly offensive, even shocking, images and words for which individuals have sought trademark registration. Many of the marks rejected under §2(a)’s bar on immoral or scandalous marks, including the marks discussed in this opinion, are lewd, crass, or even disturbing. We find the use of such marks in commerce discomforting, and are not eager to see a proliferation of such marks in the marketplace. There are, however, a cadre of similarly offensive images and words that have secured copyright registration by the government. There are countless songs with vulgar lyrics, blasphemous images, scandalous books and paintings, all of which are protected under federal law. No doubt many works registered with the Copyright Office offend a substantial composite of the general public. There are words and images that we do not wish to be confronted with, not as art, nor in the marketplace. The First Amendment, however, protects private expression, even private expression which is offensive to a substantial composite of the general public. The government has offered no substantial government interest for policing offensive speech in the context of a registration program such as the one at issue in this case.

We hold that the bar in § 2(a) against immoral or scandalous marks is unconstitutional because it violates the First Amendment.

The Federal Circuit relied heavily on  Matal v. Tam (2017) involving the band "the Slants" in which the United States Supreme Court decided that the "disparaging" provision of the same section of the Lanham Act violated the First Amendment. Recall that the Federal Circuit had also decided Matal v. Tam (f/k/a In Re Simon Shiao Tam) en banc, and the litigation in Brunetti has always been somewhat in the shadow of Tam. The Federal Circuit's opinion, rendered more than a year ago, contended that while the "immoral” or “scandalous” provisions might well be viewpoint restrictions as in Tam, they were certainly content discrimination under the First Amendment.

The concurring judge of the Federal Circuit panel in Brunetti argued that the section was amenable to a narrowing and saving construction limited to obscenity (although he agreed that because the name of Brunetti's apparel line was not obscene the trademark was unconstitutionally denied registration). The United State Supreme Court's purpose in granting certiorari is not immediately obvious, but the Under Secretary of Commerce's petition for certiorari picked up the concurring opinion's contention and argued that the Court should not declare the provisions facially unconstitutional.

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SCOTUS to hear Partisan Gerrymandering Cases (Again)

The Court has ordered oral arguments set for March on the merits of two cases involving the recurring issue of the constitutionality of partisan gerrymandering, Rucho v. Common Cause and Lamone v. Benisek.

Both cases have extensive histories including previous appearances before the Supreme Court.

From North Carolina is Rucho v. Common Cause. In January 2018, a three-judge Court's extensive opinion found North Carolina's 2016 redistricting plan was unconstitutional partisan gerrymandering under the Equal Protection Clause, the First Amendment, and Article I §§ 2, 4.  The United States Supreme Court stayed the judgment shortly thereafter,  and then vacated the opinion in light of  Gill v. Whitford (2018). In July 2018, the three judge court entered an even more extensive opinion - 300 pages - finding that standing regarding an equal protection challenge was satisfied under the Gill standard. The Court also reiterated its conclusions of the unconstitutionality of partisan gerrymandering, and enjoined the State from conducting any elections using the 2016 Plan in any election after the November 6, 2018, election.

From Maryland is Lamone v. Benisek.  In June 2018, the United States Supreme Court issued a brief per curiam opinion declining to disturb the three judge court's decision not to grant to a preliminary injunction, at the same time the Court rendered its Gill v. Whitford opinion, and essentially reserved the issue of partisan gerrymandering for another day.

It seems that day has come — or will soon — but whether or not the Court will actually grapple with the constitutionality of the problem of partisan gerrymandering is as yet uncertain.

[image: Anti-gerrymandering event at Supreme Court, October 2017, via]

 

Daily Read: Can the Senate's Composition Change by Statute?

In a column at The Atlantic, "The Path to Give California 12 Senators, and Vermont Just One," subtitled "Maybe the two-senators-per-state rule isn’t as permanent as it seems," Political Science Professor Eric Orts agrees with many others that the Senate is essentially anti-democratic and that the time has come to change the 2 senators from every state rule. 

Orts recognizes that the 2 Senators per state rule is doubly-demanded by the text of the Constitution: Not only does Article I §3 provide that "The Senate of the United States shall be composed of two Senators from each State," but Article V respecting the amendment process specifically provides "no State, without its Consent, shall be deprived of its equal Suffrage in the Senate."

Orts proposes that a way around these Constitutional commands — at least "arguably"— is through Congressional action. Orts contends that Congress could pass a law restructuring Senate representation like this:

Start with the total U.S. population, then divide by 100, since that’s the size of the current, more deliberative upper chamber. Next, allocate senators to each state according to their share of the total; 2/100 equals two senators, 3/100 equals three, etc. Update the apportionment every decade according to the official census.

Congressional power to do so, he seems to contend, would be grounded most obviously in the Reconstruction Amendments. He cites Equal Protection Clause cases such as Reynolds v. Sims (1964) and Bush v. Gore (2000), and argues that although 

the Court trimmed a portion of the Voting Rights Act in Shelby County v. Holder in 2013, Chief Justice John Roberts, in his majority opinion, reaffirmed the authority of Congress to regulate in this field and endorsed a forward-looking orientation. “The Fifteenth Amendment commands that the right to vote shall not be denied or abridged on account of race or color, and it gives Congress the power to enforce that command," he wrote. “The Amendment is not designed to punish for the past; its purpose is to ensure a better future.”

Thus, inherent in Orts's argument is not simply that the Senate does not adequately represent the population of the United States but that this inadequacy is racialized. As he notes, under the current configuration it is states with small predominantly white populations that benefit: "in California, 38 percent of citizens are white. In Texas, that figure is 43 percent," while in the two smallest states, "Vermont is 94 percent white, and Wyoming is 86 percent white." 

Indeed, Orts states that  his proposal

corrects a heavy, unjustified bias favoring white citizens in the Senate. It doesn’t go too far to describe the current Senate apportionment as a vehicle entrenching white supremacy.

Would the Supreme Court uphold such a statute? Orts suggests that the Court could "stay out of the mix" by deferring to Congress or invoking the political question doctrine.

Would Congress ever pass such a statute? Orts admits that it is unlikely in large part because a more democratic Senate is a more Democratic party Senate. But, he ends, "who knows" what 2020 will bring.

[image: United States Capitol by C. E. Loven after photograph of drawing by Thomas U. Walter, via]

Year-End Report by Chief Justice Roberts, 2018

For his 2018 Year-End Report on the Federal Judiciary, the sexual harassment concerns which surfaced at the end of Chief Justice Roberts 2017 report (which we discussed here) occupied center stage. Opening with an anecdote about the importance of law clerks, the Chief Justice discussed the contribution that the Federal Judiciary Workplace Conduct Working Group has made, linking to its more than 140 page report issued in June. The Chief Justice noted that the report determined that "inappropriate workplace conduct is not pervasive within the Judiciary, but it also is not limited to a few isolated instances involving law clerks" and that "misconduct, when it does occur, is more likely to take the form of incivility or disrespect than overt sexual harassment" and frequently goes unreported.  The Chief Justice noted that committees have proposed changes to various codes of conduct and the employment dispute resolution plan.

Interestingly, the Chief Justice does not note that these codes exclude the United States Supreme Court itself, which is of continuing interest, and which the Chief Justice has alluded to in the past, as we last discussed here. Although he writes that "The Supreme Court will supplement its existing internal initiatives and experience of the other federal courts."

The Chief Justice again thanked judicial staff for working through numerous natural disasters, but again did not address the declining diversity of the federal bench, a lack we mentioned last year and which has seemingly only increased.

image: John Roberts being sworn-in as the 17th Chief Justice of the United States by Supreme Court Associate Justice John Paul Stevens, 2005, via.